Commonwealth v. Wolf

12 Pa. D. & C.5th 39
Pennsylvania Court of Common Pleas, Lehigh County·Decided April 14, 2010·No. no. CR-1611-2009·Published

Opinion

STEINBERG, J,

On July 16, 2009, the petitioner, Mark Wolf, entered a guilty plea to rape of a child.1 Under the terms of the plea agreement, the Commonwealth agreed not to seek a mandatory sentence.2 The appellant admitted to sexually abusing his daughter, D.W., in a variety of ways. The sexual abuse began when D.W. was between the ages of 7 and 11 and continued until she was 13 years old, when she disclosed the abuse to her mother. The appellant was sentenced on December 3, 2009, to not less than 12 years nor more than 25 years in a state correctional institution and was also found to be a sexually violent predator.

Post-sentence motions were filed on December 10, 2009, and a hearing on those motions was held on January 26,2010. This court denied the motions on February 5,2010, and the appellant filed a timely appeal on March 3, 2010. In accordance with this court’s directive, the appellant filed a “concise statement of matters complained on appeal,” pursuant to Pa.R.A.P. 1925(b), on March 24, 2010. In his “concise statement of matters complained on appeal” the appellant set forth two allegations: (1) that “the court erred in finding that the defendant was a sexually violent predator;”3 (2) that the [42] sentence was improper because it is excessive and the court failed to set forth its reasons for the length of the sentence and to consider the appellant’s rehabilitative needs.

For the reasons discussed below, the appellant has failed to demonstrate that a substantial question exists regarding his sentence. Furthermore, the merits of the appellant’s sentencing claim and his objection to his designation as a sexually violent predator are wanting, and the judgment of sentence should be affirmed.

DISCUSSION

“It is well-settled that appeals of discretionary aspects of a sentence are not reviewable as a matter of right.” Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006); see also, Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006); Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super. 2003); and Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002). The appellant must demonstrate that a substantial question exists concerning the sentence. Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super. 2005).

“The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis.” Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005). A claim that a sentence is unreasonable can raise a substantial question when an appellant “sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular [43] fundamental norm underlying the sentencing process. . . .” Mouzon, 812 A.2d at 627. However, a substantial question requires something more than alleging excessiveness. See Ladamus, 896 A.2d at 595.

Here, the appellant’s vague allegations do not present a substantial question. “It is important to note that this court is not persuaded by bald assertions or the invocation of special words in a concise statement of reasons; [t]o the contrary, a concise statement must articulate the way in which the court’s conduct violated the sentencing code or process.” Commonwealth v. Cannon, 954 A.2d 1222, 1229 (Pa. Super 2008), quoting Commonwealth v. Kalichak, 943 A.2d 285,290 (Pa. Super 2008). Further, claims of excessiveness and inadequate consideration of mitigating circumstances, i.e. the need for rehabilitation, do not raise a substantial question for review. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006); Commonwealth v. Cannon, 954 A.2d 1222 (Pa. Super. 2008); Commonwealth v. Matroni, 923 A.2d 444, 455 (Pa. Super. 2007); Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa. Super. 1999). For this reason, the appellant’s claims regarding his sentence are not reviewable on appeal.

If the merits of the appellant’s sentencing claims are considered, then the sentencing court’s decision-making is scrutinized under an abuse of discretion standard. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961 (2007); Commonwealth v. Hoch, 936 A.2d 515, 519 (Pa. Super. 2007). The following explanation has been used as the starting point for determining if the sentencing court properly exercised its discretion:

[44] “Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.” Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006), citing Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (enbanc).

The appellant received a standard range sentence. His offense gravity score was 14 and his prior record score was zero. Hence, the standard range sentence for rape of a child under 13 years old was 72 to 240 months, and the appellant received a minimum sentence of 144 months. Generally, when a sentence is imposed within the sentencing guideline range there is no substantial question. Commonwealth v. Maneval, 455 Pa. Super. 483, 688 A.2d 1198 (1997); Commonwealth v. Johnson, 446 Pa. Super. 192, 197, 666 A.2d 690, 692 (1995).4

The guidelines are advisory and nonbinding, but the sentencing court must consider them in formulating a sentence. Walls, 926 A.2d at 964. The purpose of the guidelines was explained in Walls as follows:

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Commonwealth v. Wolf, 12 Pa. D. & C.5th 39 (Pa. Super. Ct. 2010).

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